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tv   Key Capitol Hill Hearings  CSPAN  December 3, 2013 4:00am-6:01am EST

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>> is not an indication of any change in opposition. we do not accept the legitimacy of china's requirements. >> coming up on c-span this morning, supreme court justice elena kagan on the workings of
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the court. live at seven eastern, "washington journal" examines implementation of the health care law. >> e-house education collegettee examines affordability and appel grant program. you can see it live at 10 a.m. eastern on c-span three. colombian president one man well santos speaks at the national press club about the economic and political situation in colombia. that is live also on c-span3. >> as you walk in, there tables out front with pamphlets, prior to entering the gun show. howpamphlets are all about
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the government is trying to take away your guns. those were the guys i wanted to talk to. they were the guys with the leaflets. i said to them. is this yourself? and they said yeah, who are you. i said i am an academic, a researcher and i'm doing research on these organizations and these ideas and trying to understand them. a bunch of them looked at me suspiciously and said -- and asked me questions. i said look, here's what i am. i don't get it. here's my job. i want to understand how you see the world. i want to understand your worldview. look, you will not convince me, and i will not convince you. that is off the table. what is on the table is at one to understand why you think the way you do very it >> downward mobility. racial and gender equality.
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at nine on after words. in october, justice elena kagan and talked about the workings of the u.s. supreme court at the university of alabama law school. this is an hour. >> i am having to get used to that title. we appreciate your service in this role. my family and i join in welcoming justice kagan to the university of alabama. we are honored by your presence. i want to give you a few vital statistics about our speaker. she u.s.-born in new york city. she received her a.b. from
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princeton. she went to oxford where she was awarded a masters of philosophy. then a jd from harvard law school. after law school she clerked on the united states court of appeals for the d.c. circuit under justice marshall. she practiced for a while in washington d.c. and then became a law professor at the university of chicago. she went from there to serve in president clinton's administration in several roles and then she went back to teaching at harvard and was subsequently named as dean of harvard law school, first female dean of the law school there. in 2009, president obama nominated her for solicitor
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general of the united states and she served in that office for a year and was then nominated as an associate justice of the supreme court. she took that position in 2010 and filled the vacancy of justice john paul stevens who, after his retirement, was our last lecturer here at the law school. those are the vital statistics. i want to tell you something personal about her and i brought this along so i could read it. this year in "time," she was named as one of their 100 most influential people in the world. i want to read to you what they had to say about our speaker today. "elena kagan the persuader. a lot of people like to talk about the swing court but every
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supreme court justice has one vote to cast and eight colleagues. what makes a justice particularly influential is the ability to persuade the others to agree and that depends on the effectiveness of the justices reasoning. in that respect, elena kagan has what it takes to be a highly influential supreme court justice. she has demonstrated herself to be an incisive legal thinker, both in her written opinions and in her questions from the bench. she is also an excellent communicator with the kind of crisp and direct style that will make her persuasive, not only among her colleagues, but also these traits will make justice kagan an important voice on the court for decades to come." it is our pleasure to introduce to you and in conversation later that we will be having, justice
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elena kagan. [applause] >> can i thank everybody first? >> you may do anything you'd like. >> i want to thank the judge for that warm and gracious introduction. i hope a little bit of it is true. and to thank the whole law school, really, for inviting me here and to the judge for endowing this lecture series. i was seeing any dinner last night, i don't exactly know how to sit in this chair. [laughter] i was saying at a dinner last night that when i became a justice i got a letter from judge allbritton that said he
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had endowed a series at the alabama law school and the following people had participated. bandit named all of my colleagues or all but one and then some of the former supreme court justices and some of the world's greatest non-american supreme court justices. my colleagues and i have lunch together and we talk about what we talk about. i had this letter and i said to them, what is it about this lecture series that everyone goes down there for? it's true, every law school has a lecture series. but they don't get every supreme court justice. my colleagues said this is a command performance. [laughter] i said what makes it a command performance? i got two answers. one is, judge allbritton, you said something about persuasiveness up there.
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the word for my colleagues was judge allbritton is a very persuasive man. [laughter] the second thing they said was people just have such a good time when they go. then they come back and each justice comes here and goes back and tells all his or her colleagues, you have to go down there. so each one of us has gone. just a warmth and hospitality and graciousness that you all have shown me just in the last 12 hours proves that all my colleagues are right. i will give you one example. i mentioned that the chief justice said to me that he is a little bit disappointed, he had a great time, but there's one thing he hadn't gotten to do and that is go to dreamland.
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[laughter] so i mentioned this and he said that he sought wasn't on my schedule, either. i immediately got an offer of ribs to take back with me. and also a little surprise for the chief justice. [laughter] so, really, to the dean who pretends to be a newbie at this business but seems to me a complete professional and you are very lucky to have him. i know from deans, i was one. so thank you, dean brubaker. and thank you judge allbritton and your entire family and for the whole university for being so gracious. so far, at least. [laughter] >> we will handle the next 40 minutes or so anyway. thank you, justice kagan. i must say that justice kagan has been one of the more gracious guests we have had as you can already see from our first minutes together. it is a real honor to have you
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here. i was tempted to think of listening to judge allbritton's introduction. if you notice all the things justice kagan has done -- it reminds me of president kennedy's favorite quip about justice -- dining alone. we would be happy to have anybody with any one of those credentials here for the allbritton lecture. it is amazing to find them all in one person. so thank you, you do is a great honor to be here. if i may, let me start with a question to sort of tie our law school together with your own experience. a few weeks ago at first-year orientation we had a wonderful presentation by a former alabama attorney general, bill baxley, and former u.s. attorney doug jones about their efforts to reopen prosecutions in the 16th street baptist church bombing cases that occurred about 50
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years ago. i thought the presentations were inspiring. they were inspiring to me as an old guy. you may also know the author of "to kill a mockingbird" harper lee studied at our school. another former student we are very proud of. i am wondering whether there are fictional or real lawyer stories that have been meaningful to you over the years. >> what a great question. i think what i would do is go back a lot of years in my life to when i was more the age of the people sitting in this room. i had graduated from law school and i had served one clerkship and then i had the chance to go to the supreme court and serve another clerkship with thurgood marshall. it was one of the most meaningful, most incredible years of my life in a lot of
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ways. it is a special thing to be a clerk on the supreme court for absolutely anybody. you are there in this building where all of these important cases are decided and you have a sense of the importance of the institution and the small role that you play in it. but it was something above and beyond that to work for justice marshall. justice marshall was then approaching the end of his life. he turned 80 the year i clerk ed for him. he had a few more years on the court and a couple years after that. but he was in a little bit of rickety health and he was maybe even more so than he had been earlier on in his life taking stock of what it all meant. his four clerks that year were privileged to sit there in his chambers and listen to him tell his stories about his life. we would go into his chambers
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every day or every other day and we were talking about cases and do the typical thing that clerks do with judges and then at a certain point in time we had said all we had to say about these cases and he would slip into storytelling mode. he was the greatest storyteller i have ever heard in my life. in a year of telling stories pretty much every day i don't think he ever repeated a single one and he was one of these kinds of, he could make you cry, he could make you laugh, he could do it all with you. but then in addition to that one had to say he had some awfully good material. because the material of his life was so thrilling, inspiring, to think about what law can do, to think about what lawyers can do to advance a society, to make us
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more just, to make it more equitable for all the people living in it. some of his stories, i think when i went to clerk for him i was more familiar with his appellate work and especially his work at the supreme court. he was a great appellate advocate. he argued -- he won almost all 30 cases of the supreme court. i think everybody well knows how magnificently he carved the strategy of bringing down the system of separate but equal and bringing down the system of jim crow and how he had this very clear step by step incremental strategy in order to do that, understanding that he couldn't do it all at once and understanding how to get a course to move towards and end -- how to get eight court to
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move towards an end result a bit at a time and how he hit cases that would allow the naacp to make incremental arguments and the kind of cases that the court was going to accept the legal defense fund was going to win. i knew a fair amount about that, but what i did know was that he -- what i didn't know was that he was one of the greatest trial attorneys of his time as well. he spent enormous amounts of time crisscrossing especially the states of the south, representing a wide variety of people, but mostly in criminal cases and very frequently in capital cases. being subjected to incredible danger himself. he would come to town and it was not at all clear that he was going to be safe and of course the indignities of traveling in a place where you couldn't stay at a hotel and you couldn't eat
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at a regular restaurant. and then representing black people before all-white juries where it was not clear that anybody had justice in mind. the stories that he told of those trips and of those cases, it all came back to me very much this summer. i read a very fine book, and that just one the pulitzer prize called "devil in the grove" about one of his capital cases in florida. it is a gripping story. it reads like a whodunit or what is going to happen, but it is also about him and the incredible lawyerly skills he had and also the great assets
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-- the great ethics that he showed in all of his work. he was a great lawyer and a supremely ethical man and i guess he is the person -- me and my clerks we were four pretty privileged kids who hadn't experienced anything in discrimination or hardship and to be exposed to that at that time of my life day after day was an experience that changed me forever and that made me think about law and the potential of law anyway that i i hopeway that --
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everybody in this room does. >> that is very interesting insight into your beginning with justice marshall. some of your earliest experience as a lawyer was there in the supreme court and now you are there. i would like to ask you - >> it hasn't changed that much. [laughter] >> that is something we would all be interested in. i want to ask you about getting there. i know that through the years in various ways you have seen the process from the outside and i understand that when you were in the clinton administration that you were involved and assigned to work some with ruth bader ginsburg in connection with her confirmation hearings. i read a law review article you wrote while you were professor at the university of chicago critiquing a book about the
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process. now you have been through the process yourself and i wondered if you would comment on your feelings about the nomination and confirmation process for getting there. >> sure. i had a good time, actually, going through the process. i will say a little bit about why, but notwithstanding that i think the process is broken. i think probably everybody agrees on that and it is hard to see how to fix it. i would tell you about why i had a good time. going through the process first. the part of the process that the public sees is the confirmation hearings, the two or three days where the nominee sits in front of the judiciary and answers
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questions in each of the senators gets a half an hour and goes one by one and starts all over again. that is an extremely important part of the process but it is the tip of the iceberg. before this happens, the nominee has visits with each individual senator. they're called courtesy visits. i did 81 of them. my colleague justice sotomayor did 92 of them. but 81 senators i would go one by one to each of their offices and some of them were just the meet and greets, 10 minutes, you take a good picture, use a high you go your merry way, but , others of them were extremely substantive and serious conversations where senators would try to figure out what you are all about and what your approach to law might be in for -- and for the most part i enjoyed all those conversations enormously.
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there are rules about what you can and can't say and it is sometimes difficult to figure out what the boundaries are, so that is a challenge. for the most part these visits were called courtesy visits for a reason. everybody was very gracious, both the people who knew they're going to vote for me and the people who knew they would vote against me. and the relatively few people but i enjoyed them. who were undecided. but i enjoyed them. i enjoyed putting names to faces and seeing what these people were like and conversing with them. i thought that was pretty much fun. and then you get to the hearings themselves and i have to admit to you, maybe it will be obvious after the day, i am a hit of a ham. they sat me down at the table and i was nervous going in but all the lights are on you. it is actually very hot up there. the first day i get my opening
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statement, because you're on tv you get professionally made up, if you're a woman, you know. my mascara started to run in front of all the lights. we had to notch down the make up the second and third day. you definitely feel like you are in the center of things. there are tons of photographers taking pictures of you. but as it got underway a person asked me, senator leahy was first and senator sessions was next. and once i got through those two i thought ok i got this. [laughter] it seemed as though the words coming out of my mouth made sense. in a way, you are very much in control of the thing. the senators are very polite, they don't interrupt you, they let you say what you want to say. i love talking about law and
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maybe someone with their love -- and maybe somebody would say i love talking, i don't know. i had a good time. now, all that said, i think that senators are very frustrated by the process. senators are frustrated because, if you basically want to know how you're going to decide -- i don't blame them for wanting to know. so they want to know how you're going to decide that next second amendment case, that next federal case. the difficulty is that the nominee is not going to say that. to a certain extent you can't say it. there are clear ethical a nominee cannot
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cross. also there are some things that even if you could say you don't say because as a nominee your goal is to get through the process. it didn't seem to work out all whenell for judgment pork aboute was fulsome absolutely everything, right? all of us since then have stopped short of saying what the senators would really like to know. i don't blame the senators for being a bit frustrated by that state of affairs. as a result, the senators, and i say this of both parties, both the people are for you and the people who are against you and the people who i think are trying to figure out which is which, maybe least of them, but the people who are for you and against you, it becomes a little bit of theater.
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it becomes a place for all of them to just make their statements about what they think about the court and the issues that the court decides. so it becomes political theater and you are just sitting there and you are the excuse in some ways for both sides, democrats and republicans alike, to do their set pieces and make their speeches. that doesn't seem all that helpful. as i say, i totally understand why it has come to that and why senators might feel very frustrated. i don't know the answer to the question because some people say well just get rid of the thing entirely. but i think senators have every right to see who it is that has been nominated and to try to get some sense of who that person is and how that person might
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approach the job of a judge. >> it is hard to follow up on the workings of the political process, one of the things that is different about you as compared to some your colleagues on the court, is that instead of coming the normal way to the court, it is through a progression of federal judgeships, you actually worked in a political job. you are one of president clinton's senior domestic policy advisers. i wonder how that experience has affected your service on the court. >> several of us have, the chief justice worked in the reagan white house and the reagan justice department. justice scalia worked in the reagan justice department and then i worked in the clinton white house and the clinton
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justice department. maybe i am missing someone. i guess justice alito worked in the justice department. the chief justice and i were the only people who worked in the white house. i think it is a really different job. that was about four years of my life and was probably the equivalent for my colleagues. it is just a really different job. i think one of the great things about lawyerly careers, i know one of the great things about my career is that different points of my life i have one different -- i have worn different hats and done different things and had different responsibilities and obligations. so when you are working in the white house for the president -- and i worked as a lawyer as a policy person -- you're mostly -- and as a thinking about policy and politics. as a lawyer, you are thinking
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about law too. but always with some politics attached to it. your job in the white house is to marry law and politics. -- and policy and politics. i cannot imagine any judge describing their role that way. this is not to say that law is a science or a mechanical enterprise. you obviously know that it is not. we disagree on many things. sometimes we disagree incredible -- we disagree in predictable ways that follow in our own theories of how to interpret the law, constitution, statutes. all of those are so different in thinking about policy and the way people in the clinical branches do.
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-- in the political branches do. that was when i was in my 30s. it was a different role. it was a different set of responsibilities. as a judge, i think about law and what i am doing and what i am called upon to do in a very different way. of all the things in my life that affect what i'm doing now, i honestly think that affected the least. one thing that i bring to the i guess table from those years is an understanding of how certain political processes work. sometimes it is relevant to particular cases that we may hear because of course, we do review a lot of executive branch decision-making. but other than that, the ways of thinking and the goals of what you are doing are pretty
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divergent. >> let me expand that a little bit. at the trial level, the theory is that diversity of all kinds on a jury will help in fact finding. because jurors from different backgrounds all bring different life experiences to the table. that is somewhat what you talked about their. there's been some talk in the press and other places about the lack of that kind of diversity on the court. do you think there is any room for a theory that more diversity on the supreme court would be good in legal decision-making, as opposed to fact-finding echo >> i do think -- i would like to
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see a more diverse court in some ways. the way in which i think you are very polite not to say so, but the way in which the court is not diverse is that this court is a very coastal and urban and elite law school court. you know, a tremendous number of the life years of the justices on the court have been spent on the acela line of amtrak. it goes from boston to new york to d.c.. it's not there, maybe there is a little bit of west coast. but there's not a lot in between.
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the chief justice grew up in indiana. justice thomas grew up in georgia. but they spent most of their professional lives in washington, d.c. the rest of us are pretty eastern or californian. all of us have gone to the same two law schools basically. it is just one of these weird flukey things that all of us are graduates of harvard nel, -- harvard or yale, except for justice ginsburg who spent one year at columbia. that seems kind of crazy to me. it is not a good thing. i guess i would say this. it is not a good thing for me other than that the cases would come out differently if it were more diverse. diversity is good because we are an important institution. there are nine of us stop -- nine of us.
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when a nine person institution looks more like the country, it has greater credibility. people can identify with it a little better. those things are important for an institution. i would say the same thing about why it is important that we now have three women. it is a great thing. my colleague, justice ginsburg, she always says, what about nine? [laughter] i think it is a really good thing. i look out onto the court room all the time and there are all of the school children who come in, school groups, and i think, it is a great thing that young girls and young boys are seeing me and justice ginsburg and justice sotomayor and none of us are shrinking violets. they are watching us and the fact that we contribute in the exact same way as our male colleagues do.
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that is terrific. i think it would be good if we were diverse in some other ways that i mentioned for the same exact reason. but i do not think it means all makes all that much difference in the conference room. when the doors are closed and we are deciding cases. i am not going to say that it never makes a difference because i do think there are particular kinds of cases where somebody might have a very strong intuition about the way the world works that comes out in the decision-making process. i think in particular about a case a few years ago when i was solicitor general and justice ginsburg was the only woman on the court then. i think she had a very different reaction to a case involving the strip search of a 13-year-old girl. there are occasional cases like
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that, but i think they are rare. i think when a door closes and we discussed cases, there are three women there. it makes not a whit of that three of them are women. i think that is true most of the time. it is not to make the decision- making process different. it is because we are a public institution. we are supposed to be the eyes of the country. it is important that the entire country can see -- to be able to identify a little bit more. >> you referred a couple of times in those remarks to the decision-making process. that process is a deep mystery to the outside world. what can you tell us about it?
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not only how it works, but for example, how you observe your colleagues changing their minds about cases along the way? what makes the difference? >> people do think hard along the way. because they think hard along the way, sometimes they change their minds along the way. the first thing that you get in a case is the brief. the briefs are the first and most important thing. in terms of one's thinking about the case. if you are doing appellate work, i suspected as much the same. getting your argument down in the most persuasive form. in the written materials that you give to the court, it matters the most. that is where you are really
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going to start thinking about a case and the arguments on each side. and trying to figure out who is stronger. that is the most important thing. then we have oral arguments. you can lose a case in oral argument, you can win a case in oral argument, but rarely both. but often i will go into oral argument and have a kind of lien, and the oral argument will confirm that or it will make the drawback and say, maybe i am wrong. maybe i need to look at this more. maybe i need to figure this out again. the oral arguments can make a difference. they are also important to the
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supreme court for a strange reason. it is the first time that the they hearalked before each other. in some courts, especially overseas, the justices talked before they hear arguments. we do not. part of the argument is communicating with your colleagues about what you think about a case. in conference, when we sit down together for the first time, we follow a pretty stylized format. we go round the table and everybody speaks once before anybody can speak twice. if you are like me, eight people will have spoken and cast a vote by the time i get to say anything. that means if i wanted to think -- if i want them to think about a certain thing, if i have what i think is a bit of an unusual take on a case, a take that has not been presented so much in the brief, i will try to use oral arguments to preview it, if you will.
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to get people to think about it. many of my colleagues do the exact same thing. sometimes you feel sorry for these lawyers. this lawyer is standing on the podium. it is kind of an excuse for us to be having a conversation with each other. you can tell that the lawyer is a little bit like, i have some points to make, too. [laughter] we are like, too bad. [laughter] >> i think some law students can identify with that. >> then we have conference a couple days after oral arguments. i like that. a lot of appellate courts around the country, people go into conference right after the arguments. i like the fact that we have a couple of days where we talk about it with our clerks, i talk
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about it in one-on-one conversations, and we mull it over. i mull it over, what i have heard and what i am thinking. then we go into the conference room and it is just the nine of us. we have no clerks, no administrative people at all. the chief justice starts things off. he frames the case and reminds everybody here are the issues , and here is what we need to decide. he is the first person to state his views. he casts a preliminary vote. and it goes around the table. in seniority order. so i always speak ninth. it is actually better than speaking eight, 7, 6. it has a certain drama to it sometimes. [laughter] and then sometimes, but not always, free-form conversation breaks out.
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my first conference, i thought it was the weirdest thing. we came in and there was one important case. it was the kind of case it would appear on the front pages of the newspapers. the second case, nobody -- not a newspaper in america would write about this case. it was a very complicated procedural case. the first case, we went around the table and each of us that -- each of us said his or her piece. it was one of those 5-4 cases. it was 5-4 and the chief justice said, next case. we did not say anything else. the next case was his procedural case. we went around and it was really hard i complicated and nobody knew what was going on. then we went around the general conversation broke out.
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we talked about this case for a good 40 minutes. i went down and i thought, this is the strangest thing i have ever seen. this really important case, 10 minutes. this case that nobody has ever heard of, 40 minutes. what is that all about? as i thought about it and as i have experienced more cases, i realize that there are some cases where you can talk until you are blue in the face. in the end, people might think it is interesting. they might think that you did the best you could for that argument. but they are not going to be persuaded. there are cases where we are not going to persuade each other. there are two different ways of looking at this, or three. in the end, talking probably will not change that. there are other cases where talking can change a lot. people can start thinking about things in an entirely new way.
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i love those cases. i love cases where people do not have strong priors. they are really susceptible to arguments and persuasion. i like the feeling of being persuaded myself. i like the feeling of persuading others. it is not true of every case. there are some cases where we just disagree. we know that we disagree. we know at the and that we disagree but there are lots of , others and some are less important. but also some more important. we are really trying hard to think about real issues, complicated issues, issues that people have not thought about before. issues that people do not have going into -- do not have convictions on. i love that process. >> these law students are reading the final results. from reading some of the opinions and some of the
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language, some of them and some people may have the idea that there's a lot of animosity among the justices. what has been your experience on a personal level? >> this is the thing that surprises people the most. you are exactly right, judge. sometimes you read a majority and then you read a dissent and you think, wow these people must hate each other. they are throwing things at each other. they are close to calling each other names. the truth of the matter is, we like each other quite a lot. i think it is a testament to the institution and the way it works, particularly with the chief justice, that the institution runs his wife. -- runs this way.
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we are actually a very collegial court. we have very firm friendships. enduring friendships. possibly the best friend, the best friendship on the court, is between two people who no one usually puts in a sentence together. it is between justice scalia and ruth ginsburg. they've been friends for decades and decades. they share a new year's eve dinner together every year for all that time. they really love each other. i think that is -- i think we all like each other and i think we all have enormous respect for each other. i think we all believe in each other's good faith. that is not easy every day.
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it is not easy on cases that you really care about. you think that there is an obviously right answer to them. you have to listen to a colleague who has come out in the exact opposite way. and not ever edutainment -- it is hard sometimes to realize that people, two people can approach the same problem in utter good faith and diverge so dramatically. i think all of us know that it is true. one of the important lessons of life in the law and something that the court really depends on is understanding that. i think we do. i think there have been historic
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periods where that has not been true. there's been dislike and disrespect. there've been pathological hatreds on the court. i read a book by a former colleague of mine called "scorpions." it is a fascinating book. it is about four supreme court justices, all giant figures, who were all appointed by the same president. they were all appointed in some respect to do the same thing, which was to save the new deal. they were franklin roosevelt's appointments. a justice from alabama, justice jackson, justice douglas, they -- and justice frankfurter. they were all appointed by one president within the space of a few years. it was a particular thing that he hoped his justices would do. but then it turned out that these justices were serving years and years and years and different cases come before them
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that have nothing to do with the reasons that franklin roosevelt appointed them. they go in all kinds of and different directions. they develop all kinds of andthey develop all kinds of different theories about how to interpret the constitution. unfortunately in the case of , those four, they develop real animosity between themselves. i believe it was justice frankfurter who said about justice douglas that he was the second most evil man he had met his life. leading everyone to think, who was the first? [laughter] but i'm really happy to say, i am really happy to say that this court is nothing like that. it was really a joy to come into the institution as a newbie, a junior justice, as my colleagues remind me, but to have that
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example in front of me. the chief justice really sets the tone for the institution. i think that is a great thing. >> but you mentioned justice scalia. i understand that you have a friendship with justice scalia as well. like i have. >> i have. i knew justice scalia before he came on the court. he is a total crack up. i love the guy. he is such a good guy, so generous, so warmhearted, i love spending time with him. he did me a big favor. if you don't mind, i am going to tell the story. this goes back to your first question about the confirmation process. when you go through the confirmation process now, at least if you go through the way i go through it, there is the nominee of a democratic president and if somebody wanted to characterize my demographic i
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think they would say that i'm a jewish woman from new york city, -- not known to have particularly strong feelings about guns maybe. when i went to all of these courtesy visits, the question i was asked most was not about abortion or religion or anything else. the question i get asked most was my views on guns. nobody can really say, how are you going to rule in this case, how are you going to rule in that case. instead they would ask me questions that were designed to figure out who i was and what i was. a lot of people, democrats republicans, both, they would sit me down in the chair and say, did you ever hide? -- hunt? i would say to myself, that is not really what we did growing up in york city. [laughter]
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-- growing up in new york city. they would say, did you have friends who had -- hunt? have you ever shot a gun? have you ever held a gun? all of my answers to these questions were in their view, pathetic. [laughter] i was talking to one of the senators from idaho and he goes through these questions. he says amy, this is really -- he says to me, look, this is really important. it is important that you understand how important the gun culture is in my state. there is a lot of fear about the way you might think about second amendment issues. you may not be familiar with this set of things. i appreciated that. said, to him, senator, i i tell you, i am the person i am. i have had the experiences that i have had. if you want to invite me hunting, i would be delighted to go. this look of abject horror came over his face.
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[laughter] do i have to go hunting with her? [laughter] i realized maybe i had crossed a little bit of a line. i said, i will tell you what senator, if i am lucky enough to be confirmed, i will ask justice scalia, who i need to be a great hunter, to take me hunting. when i was confirmed, i went to justice scalia and i told him this whole story. he thought it was hilarious. he said, we are on it. the first thing he did is that he took me to the gun club. we shot clay pigeons and he gave me lessons about gun safety. then he started taking me out -- first we shoot words together. we've done this multiple times. probably five or six times and we are going in a few weeks. at the end of, i guess it was the end of a few years ago.
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the end of my first term on the court, he said to me, you have the birds down. we are going after big game. we we spent three days in went out to wyoming together. of us had aeach deer license and an antelope license. each of us shot a deer. neither of us on antelope. he think that was a failure of the trip. he thought that we could've have shot these gears in his backyard. [laughter] i enjoyed it i shot a deer. i have a great printable justice -- i have a very good friendship with justice scalia who i value highly. if i tell you that i go to the opera with justice ginsburg, you would probably not be as interested in that. but i do that too. >> let me follow up a little bit
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on maybe what is a more process oriented version of a similar question. it sounds like it is wonderful to be a justice on the supreme court in terms of personal relationships. it is obviously a group of folks that it is wonderful for us to hear the stories and it is very encouraging to hear how seriously you take your jobs. but you do disagree with each other. you do disagree vehemently at times. i want to ask you about s. when is itinion appropriate to write a dissent? after you've lost once, that they justice have an obligation to admit defeat and go on? how does that work in your mind?
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>> like i think dissenting opinions play an important role in the court. that is not to say that i do not value consensus. to the extent that we can achieve consensus, i think we should try hard to do so. i very much admire the chief justice's efforts in that regard. i hope that i am a willing participant in that effort. i think the absolute worst thing on the court is when the -- is when we splinter and when there is not even a majority. when there is one of these four people say one thing, three people say one thing, two people say another thing. that is the worst thing. it leaves poor lower court judges do not know what to make of what we have said. obviously, lawyers as well. that is the thing that i think is most important. that we try to come together at least to get a clear majority. sometimes that is not possible. but i think a lot of effort should be expended on that. once you're beyond that, --
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there is a majority. are you going to descend from it dissent from it? it partly depends on what the majority says. majority can craft its ruling narrowly enough so that a big division or his agreement is not implicated, that is a terrific thing that we should try to do. sometimes it is not going to be possible. there are some issues that you can narrow all you want. we are still going to disagree. and then dissents are appropriate there are different . of dissents. summary matter of condition, i have to be right am. there are cases we do that are not so important. there will nevertheless be a dissent.
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you're trying to think, what is the deal their? in a case about the meaning of a particular statute. it is just an honest disagreement about what these words on the page mean and whether maybe it is a disagreement that is based on ideological differences about statutory interpretation. maybe it is just a different ce based on how you read it -- a certain provision which are often very collocated. -- are often very complicated. you will see a dissent think what is the purpose of that dissent? and that case, it is not your writing for the ages. you are not writing in the hopes that the court will change his mind or anything like that. you are writing that it is a complicated thing and both sides presented arguments. both sides have worked very hard on it. the fact that different people can look at the same words and read in two different ways. in some respects, that is an honest thing to say. this is not a 9-0 case.
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it is not a slamdunk. the lawyers that were presenting it on the other side were not making fallacious arguments. they might have had a point. you can honestly express what the entire court things about a -- thinks about a case. sometimes there is also a dissent, and it is not a dissent that you take with you to the grave. oh, i said these words meant x and i am sticking with that for all time. there are other cases which are more matters of strong conviction where you really hope that what you are dissent will be is a kind of marker. it is a marker that says, i disagree with this and i think it is important that the court go no further down this very wrong road. and potentially, where you say,
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i disagree with this and it will be a good day if the court changes its mind. there have been extremely important dissents in american legal history. which have become majority opinions. the most obvious example is that our entire first amendment tradition started out as a dissent of all over wendell -- oliver wendell holmes and louis brandeis over what the first amendment all about. not every dissent will be like that. maybe one dissent if you are your entire life will be like that. lucky. i think there are dissents were you are saying, this is the wrong road. they're going to be other cases that will involve other issues. i'm telling you why this is the
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wrong approach to this entire line of cases. in terms of -- president is very importantnt is very to the courts. usually, you need a lot more if you could overrule a case every time you thought it was wrong, there would not be that much to precedent. it is important to a functioning legal system. it usually means other things. it is unworkable or the legs have been cut out from under it. it is inconsistent with a whole pack of our other precedents. it is read at a justice or the rare will -- it is


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